Citation Nr: 0514246
Decision Date: 05/25/05 Archive Date: 06/01/05
DOCKET NO. 02-18 723 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to a certificate of eligibility for financial
assistance in the purchase of an automobile or other
conveyance or adaptive equipment.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
WITNESSES AT HEARING ON APPEAL
Appellant and Spouse
ATTORNEY FOR THE BOARD
T. Byers, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1967 to July
1970.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a July 2002 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Detroit,
Michigan.
The veteran testified before the undersigned at the RO in
August 2004. The transcript from the hearing is of record.
During the hearing, he submitted additional evidence and
waived RO consideration of it.
FINDINGS OF FACT
1. VA has fulfilled its duty to assist the veteran by
obtaining and fully developing all relevant evidence
necessary for the equitable disposition of the issue
addressed in this decision.
2. Service connection is currently in effect for diabetes
mellitus and bilateral lower extremity neuropathy associated
with diabetes mellitus.
3. As a result of service-connected disabilities, the
veteran has effectively lost the use of his feet.
CONCLUSION OF LAW
The criteria for a certificate of eligibility for financial
assistance in the purchase of an automobile or other
conveyance and necessary adaptive equipment have been met.
38 U.S.C. §§ 3901, 3902, 5107 (West 2002); 38 C.F.R. §§
3.350, 3.808 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that VA has a duty to assist the
appellant in the development of fact pertinent to his claim.
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000). VA has a duty to notify the
appellant and his representative, if any, of any information
and evidence necessary to substantiate the claim. 38
U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2004).
A letter was sent to the appellant in April 2004 explaining
the VCAA, asking him to submit certain information, and
informing him what evidence and information VA would be
obtaining. Further, the rating decision dated July 2002 and
the August 2002 statement of the case informed the veteran of
the standards necessary to be eligible for financial
assistance in the purchase of an automobile or other
conveyance or adaptive equipment. Therefore, the Board finds
that the Department's duty to notify has been fully
satisfied. See Quartuccio v. Principi, 16 Vet. App. 183
(2002). In light of the favorable decision contained herein,
that is, the grating of the appellant's claim, it is clear
that sufficient evidence was developed n this case in this
respect.
In the present appeal, the veteran is seeking entitlement to
a certificate of eligibility for entitlement to a certificate
of eligibility for financial assistance in purchasing an
automobile or other conveyance and for necessary adaptive
equipment, or for adaptive equipment. The veteran contends,
in essence, that he should be granted a certificate of
eligibility for financial assistance in the purchase of an
automobile or other conveyance and adaptive equipment
therefore because he has lost the use of his lower
extremities. See generally 38 U.S.C.A. §§ 3901, 3902.
A certification of eligibility for financial assistance in
the purchase of one automobile and of basic entitlement to
necessary adaptive equipment will be made where the claimant
meets the requirements of paragraphs (a), (b) and (c) of
38 C.F.R. § 3.808. The claimant must have had active
military, naval or air service. 38 C.F.R. § 3.808(a). One
of the following must exist and be the result of a disease or
injury incurred in or aggravated during active military,
naval or air service: (i) loss or permanent loss of use of
one or both feet; (ii) loss or permanent loss of use of one
or both hands; (iii) permanent impairment of vision of both
eyes: central visual acuity of 20/200 or less in the better
eye, with corrective glasses, or central visual acuity of
more than 20/200 if there is a field defect in which the
peripheral field has contracted to such an extent that the
widest diameter of visual field subtends an angular distance
no greater than 20 degrees in the better eye; and (iv) for
adaptive equipment eligibility only, ankylosis of one or both
knees or one or both hips. 38 C.F.R. § 3.808(b). A specific
application for financial assistance in purchasing a
conveyance is required, and must contain a certification by
the claimant that only persons properly licensed will operate
the conveyance. 38 C.F.R. § 3.808(c).
Loss of use of a hand or foot is defined as no effective
function remaining other than that which would be equally
well served by an amputation stump at the site of election
below the elbow or knee with use of a suitable prosthetic
appliance. The determination will be made on the basis of
the actual remaining function, whether the acts of grasping,
manipulation, etc., in the case of the hand, or of balance,
propulsion, etc., in the case of a foot, could be
accomplished equally well by an amputation stump with
prosthesis. 38 C.F.R. § 3.350(a)(2)(i).
The veteran is 20 percent service connected for diabetes
mellitus, 40 percent service connected for left thigh wound,
40 percent service connected for right lower extremity
peripheral neuropathy, 20 percent service connected for left
lower extremity peripheral neuropathy, 20 percent service
connected for right upper extremity peripheral neuropathy, 20
percent service connected for left upper extremity peripheral
neuropathy, 10 percent service connected for amputations of
the right great and second toes associated with diabetes
mellitus, and 10 percent service connected for amputations of
the left great and third toes associated with diabetes
mellitus. His combined service-connected disability rating
is 100 percent. The Board believes it clear from the record
that his total service-connected disability picture is
permanent in nature.
A June 2002 VA examination report showed the veteran to have
two digits amputated from each foot due to peripheral
neuropathy, and to be experiencing peripheral neuropathy in
the plantar surface of the feet.
A November 2003 VA treatment record shows that the veteran
was experiencing increased numbness in both feet and was
experiencing instability due to this numbness. The veteran
was supplied with two canes and arrangements were made for
the veteran to receive training on how to use these canes to
walk.
In two separate statements by dated March 2002 and September
2002, a VA clinical specialist stated that the veteran should
not drive due to the severity of his lower extremity
neuropathy.
In the hearing transcript dated August 2004 before a Veterans
Law Judge, the veteran stated that he is unable to "keep
track of his feet," which interfered with his ability to
drive an automobile. He explained that he was unaware
whether his foot was on the gas pedal or the brake.
When all the evidence is assembled, VA is then responsible
for determining whether the evidence supports the claim or is
in relative equipoise, with the appellant prevailing in
either event, or whether a preponderance of the evidence is
against the claim, in which case the claim must be denied.
See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The
Secretary shall consider all information and lay and medical
evidence of record in a case before the Secretary with
respect to benefits under laws administered by the Secretary.
When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107 (West 2002).
The medical evidence summarized above suggests to the Board
that there is significant impairment so as to result in a
situation where the actual remaining function could be
accomplished equally well by an amputation stump with
prosthesis. There is no medical evidence of record to
dispute this conclusion. The Board finds that entitlement to
a certificate of eligibility for financial assistance in the
purchase of an automobile and necessary adaptive equipment is
warranted. 38 U.S.C.A. § 5107(b). As adaptive equipment is
included in this grant, the Board need not consider
entitlement to adaptive equipment only.
ORDER
Subject to the law and regulations governing the payment of
monetary benefits, entitlement to allowance for automobile
and other adaptive equipment is granted.
____________________________________________
CHRISTOPHER J. GEARIN
Acting Veterans Law Judge,
Board of Veterans' Appeals
Department of Veterans Affairs